Reno v. Wilson

BATES, J. This is a motion against a sheriff for refusing to pay over money received by him on execution. The defence set up is, that he applied the money to an execution in his hands against the plaintiff. The court cannot admit the validity of this de-fence. Money in the possession of a party is subject to levy. 2 Show. 166; Dalton, 145. But the contrary is true where it is in the hands of an officer, for then it is in custodia legis. This principle is fully warranted by the decision of the supreme court of the United States in Turner v. Fendall, 1 Cranch [5 U. S.] 117, — a case parallel in all the material circumstances to that at bar. 3 Croke, 166, 176; 1 Doug. 219; Barnes, Notes Cas. 214; 4 Bibb, 312. Judgment for plaintiff. The quaint reason given in the old cases, why the sheriff could not take money in execution, even though found in the defendant’s serntoire, was that it could not be sold. This reason is not a good one, and in Turner v. Pendall, above cited. Chief Justice Marshall laid down the true rule as follows: “The reason of a sale is that money only will satisfy the execution, and if any thing else be taken, it must be turned into money; but surely, that the means of converting the thing into money need not be used, can be no adequate reason for refusing to take the very article, to produce which is the sole object of the execution.” 1 Doug. 230. And in Handy v. Dobbin, 12 Johns. 220 (which may be considered as overruling Williams v. Rogers, 5 Johns. 167, as far as that may question the right to levy on money), it was said that there was no objection in nrinciple, why money should not be taken in execution; that it was the goods and chattels of the party, and that it comported with good policy as well as justice, to subject every thing of a tangible nature to the satisfaction of a debtor's debts, except such things as the humanity of the law preserved to a debtor, and mere choses in action. In Arkansas, and probably in other states, it is provided by statute, that any current gold and silver coin which may be seized on execution, shall be returned as so much money, collected, without exposing the same to sale. Digest St. Ark. n. 498. § 25. On principle and authority, the following positions would seem to be clear: (1) That money in the possession of the defendant, or a third person other than the officer, may be seized on execution and returned without sale as so much money collected. (2) That money collected by an officer on execution cannot be levied on nor attached while it remains in his hands, nor appropriated by him on an execution against the person for whom the money was collected. (3) That where there are conflicting claims, and the rights of parties are doubtful, a court of equity is the proper tribunal to enable a creditor, by a proceeding in the-nature of a creditors’ bill, to reach the money so collected, and subject it to his claim, or otherwise adjust the equities of the respective parties. (4) That although a court of law will not generally interfere in a summary manner where the case is complicated and the right doubtful, yet when these obstacles do not intervene, and justice will be promoted thereby, such money may be appropriated at law under the direction of the court to which the execution is returnable, on a summary motion for that purpose, first giving reasonable notice to the party interested, to enable him to show cause against it. as that he has paid the debt, or that the appropriation ought not to be made.